A Switch on the Shell Game
Deep in darkest Florida, north of Hurricane Andrew's damage but well south of frosts, another precedent is emerging in environmental law. Once again, an endangered species is catching the blame for halting economic development. But this is no case of the spotted owl versus the timber industry. This is Roger Lambert versus the turtle dumpers, or tortoise dumpers, actually. The endangered species in question is the gopher tortoise. (The rule of thumb is that turtles are water-living beasts, found in swamps or seas depending on their kind, while tortoises live on land.)
A full-grown gopher tortoise has a domed shell about the diameter of a dinner plate. Gopher tortoises look a bit like old-fashioned helmets without soldiers underneath as they go creeping through the grassy country they favor. They are great at digging, as their common name implies, and have shovel-like front feet. They have fairly elaborate courtship procedures, involving much bobbing and weaving of necks and heads, perhaps to avoid wasting romantic efforts on inanimate objects like stones or discarded soup bowls.
Like their water-going turtle kin, tortoises have been around for tens of millions of years. Dinosaurs may have stubbed their toes on tortoises. They've been through a lot over that great span of evolutionary time, but nothing prepared them to adapt to shopping malls and superhighways. Even though they can eat cactus and live for 50 years, gopher tortoises now face tough times in Florida.
So, with their numbers depleted by progress, Florida's gopher tortoises are protected by law. Roger Lambert learned this when he sought to develop property near a small airport outside ritzy Palm Beach. His patch of ground harbored a healthy population of 34 gopher tortoises, and the frequency of head-bobbing among them portends that the population will be increasing. Lambert's plan to develop an aircraft services facility on the property went on hold.
Lambert went to court. He is not trying to change the law, or to claim the jobs his facility will create are more valuable than the tortoises. Instead, he wants recompense for delay and criminal acts. A business competitor, Lambert says, hired a Native American expert knowledgeable about "the habitat of certain animals," as the Washington Post News Service put it. The competitor paid said Native American expert to tortoise-nab some members of this endangered species from their usual haunts to the site of his intended business. Lambert is suing under antitrust laws; tortoise-planting by his business rival with assistance from a hired tortoise expert amounts to conspiracy in restraint of trade.
Science can't help or hinder his cause. Florida state biologists admit there sure are an awful lot of tortoises on Lambert's property, but no one knows how to tell if they are local-born citizens or illegally transported aliens. Unless one of the conspirators confesses, Lambert may have trouble proving his case.
But his problem is not like that of a lumberman confronting a murrelet nesting area, for example. Gopher tortoises can adapt---which is why Lambert can claim credibly that his thriving herd of tortoises was dumped off rather than indigenous. To proceed with development under Florida law, he merely has to hire another expert on the habitat and lifeways of the animals. For a hefty fee, the expert can find a new home for the tortoises and transplant them to it.
I suspect this peculiar kink in environmental law will never catch on in Alaska, even for serious business rivals. The state is well-enough endowed with Native American experts and legally protected animals, but who'd believe it when a pod of walruses showed up at the site of a new gas station?
